S v Chitiyo and Others (CC77/2019) [2022] ZAECMKHC 69 (30 September 2022)

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[2022] ZAECMKHC 69
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S v Chitiyo and Others (CC77/2019) [2022] ZAECMKHC 69 (30 September 2022)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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N
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MAKHANDA
CASE
NO. CC77/2019
In
the matter between:
THE
STATE
and
FRANCIS
CHITIYO

Accused 1
TRYMORE
CHAUKE

Accused 2
MISCHECK
CHAUKE

Accused 3
SIMBA
MISINGE

Accused 4
NHAMO
MUYAMBO

Accused 5
ABRAHAM
MOYANE

Accused 6
JUDGMENT
Bloem
J.
[1]
Each
of the accused faced four charges.  In count 1 they were charged
with statutory conspiracy to commit a restricted activity
involving
rhinoceros (rhino), in contravention of section 18(2)(a) of the
Riotous Assemblies Act
[1]
and
section 57(1) of the National Environmental Management: Biodiversity
Act.
[2]
In count 2
they were charged with statutory conspiracy to commit theft of rhino
horn, in contravention of section 18(2)(a)
of the Riotous Assemblies
Act.  In count 3 they were charged with the unlawful possession
of a firearm, in contravention of
section 3, as read with sections 1,
103, 117, 120, 121 and schedule 4 of the Firearms Control Act,
[3]
as further read with section 250 of the Criminal Procedure Act.
[4]
In count 4 they were charged with the unlawful possession of
ammunition, in contravention of section 90, as read with the
above
sections of the Firearms Control Act as well as section 250 of the
Criminal Procedure Act.
[2]
The allegations against the accused in
count 1 were that on 31 July 2018 and on the N2 highway near
Makhanda they unlawfully
and intentionally conspired with each other
to commit the prohibited restricted activities of hunting and/or
killing of rhinos
(being a specimen of a protected species), and/or
collecting and/or cutting and/or chopping off and/or having in
possession and/or
exercising control over and/or conveying and/or
trading in and/or receiving and/or acquiring rhino horns, without a
valid permit
to commit those activities in contravention of the
aforesaid legislation.  In count 2 it was alleged that on the
same date
and place referred to in count 1 they unlawfully and
intentionally conspired with each other to commit theft in order to
steal
rhino horn from the rhinos which they intended to poach and
being the property or in lawful possession of unknown persons.

In count 3 it was alleged that on the same date and place referred to
in count 1 they unlawfully and intentionally possessed
a
firearm, namely a Voere .375 Holland and Holland calibre rifle with
an unknown serial number, while they were not the holders
of a valid
licence, permit or authorisation for that firearm.  In count 4
it was alleged that on that same date and place
referred to in count
1 they unlawfully and intentionally possessed nine rounds of .375
Holland and Holland calibre ammunition,
while they were not the
holders of a valid licence in respect of a firearm capable of
discharging that ammunition or a permit or
authorisation to possess
that ammunition.  The state furthermore alleged that at all
times material hereto the accused acted
in concert with a common
purpose to perpetrate all the above offences.
[3]
All the accused pleaded not guilty to all
the charges without disclosing the basis of their defence.  It
was only accused 2
who tendered a plea of guilty to having being in
unlawful possession of a firearm and ammunition, as alleged in counts
3 and 4.
Mr Coetzee, counsel for the state, informed the court
that the state did not accept the factual basis upon which accused 2
pleaded
guilty on counts 3 and 4.  A plea of not guilty was
accordingly also entered in respect of those counts.
[4]
The
accused also made admissions in terms of section 220 of the Criminal
Procedure Act.  They admitted that on 31 July 2018
a silver Ford
Ranger bakkie (the Ford) and a white Isuzu bakkie (the Isuzu) in
which they were travelling were stopped and searched
on the N2
highway near Makhanda by members of the South African Police Service
at an authorised vehicle control point; that the
Ford was registered
in the name of accused 1 and driven by him, with accused 2, 3
and 4 as his passengers while the Isuzu,
registered in the name of
accused 5, was driven by him, with accused 6 as his passenger; that a
dismantled, unlicenced Voere .375
calibre hunting rifle with erased
serial number, a silencer and nine live rounds of .375 calibre
ammunition for that rifle were
found in the tailgate of the Ford;
that the rifle, silencer and ammunition were found wrapped in black
refuse bags; that none of
the accused held valid firearm licences,
permits or were authorised to possess the rifle or ammunition; that
subsequent ballistic
testing by the police forensic laboratory in
Gqeberha established that the rifle had fired the bullets recovered
from the illegally
hunted and dehorned carcasses of one rhino on
Kragga Kamma Game Reserve at Gqeberha (Kragga Kamma) at the end of
June 2018 and
two rhinos on Shamwari Game Reserve near Makhanda
(Shamwari) during early July 2018; that the photographs taken at the
scene of
the arrest of the six accused by warrant officers Witbooi
and Swartbooi respectively correctly depicted the scene and the items

found inside the two vehicles and on the accused; and that the
cellphone data in respect of cellphones found on the accused were

lawfully obtained from the various cellphone service providers in
terms of section 15(3) and (4) of the Electronic Communications
and
Transactions Act
[5]
and have
been correctly and accurately captured on a compact disc, which was
handed in as an exhibit.  Save for accused 5,
the other accused
also admitted that the cellphone numbers set out in the list of
admissions were used by them during the period
between 2016 and their
arrest on 31 July 2018.  In respect of accused 5, he
admitted only that he was in possession of
three cellphones at the
time of his arrest.  He did not agree, as the other accused did,
that those cellphones were used by
him during the above period.
[5]
The first witness for the state was
Francois Vos, a captain in the South African Police Service who was a
group commander for serious
and violent crimes at Makhanda.  At
the time of the arrest of the accused, he was attached to a rhino
task team under the
command of Mornay Viljoen, another captain in the
South African Police Service.  That task team was established to
investigate
rhino poaching in the Eastern Cape because poaching was
on the increase since approximately 2016.
[6]
On 31 July 2018 he and captain Viljoen
received information regarding two vehicles conveying persons who
were on their way to poach
rhinos.  Their information was that
the vehicles were travelling from East London in the direction of
Gqeberha.  They
sought and obtained authorisation from the
Makhanda station commander to set up the vehicle control point.
They patrolled
the road between Makhanda and Peddie.
At approximately 15h00 they came across a stationary white Isuzu
bakkie, facing Makhanda.
He noticed people standing outside the
vehicle.  They did not stop but carried on because they were on
the lookout for the
Ford.  They saw it approximately 5km from
the stationary Isuzu, also travelling in the direction of Makhanda.
Because
of the heavy traffic on the road, they could not make an
immediate u-turn.  After they had ultimately made a u-turn, they
found the Ford towing the Isuzu approximately 10km outside Makhanda.
They stopped the two vehicles with the assistance of
other police
officers.
[7]
The vehicles, drivers and passengers of the
vehicles were searched.  The rifle, silencer, and ammunition
were found hidden
in the Ford.  A new axe was also found in each
of the bakkies.  Rolls of black plastic refuse bags, knives,
overalls
and shoes in backpacks and ten cellphones were also found.
The sum of R12 350.00 cash was found in the jacket of accused

1.  The accused were arrested.  Before they were taken to
the police cells, photographs were taken at the scene of their

arrest.
[8]
On 2 August 2018 captain Vos accompanied
all the accused to East London where he searched their respective
homes.  Accused
1, 2, 3, 4 and 5 reside close to one another in
the same street.  Accused 6 lives in a different area.
Their travelling
documents showed that only accused 1 and 5 were in
the country legally.  At accused 1’s dwelling he found
black plastic
bags and cellotape similar to those wrapped around the
rifle, silencer and ammunition.  He also found two side cutters,
two
hacksaws and two short handle axes.  At accused 2’s
dwelling he found four SIM cards and shoes.  Accused 3 and 5

shared a one-roomed dwelling.  He found three cellphones which
accused 3 claimed as his.  He also found an electronic
scale
belonging to accused 5 and registration documents relating to the
Ford and Isuzu.  Other documents indicated that, at
some stages,
the Ford and Isuzu had crossed the border into Zimbabwe.  He
took possession of the scale because it is one that
could be used to
weigh a rhino horn.  At accused 4’s dwelling he found
shoes and a passport belonging to someone else.
At accused 6’s
dwelling he found a pair of gloves and a pair of shoes.
[9]
Captain Viljoen testified that he is the
co-ordinator of all rhino investigations in the Eastern Cape.
He is also the lead
investigator of all those investigations.
He has visited all the scenes of rhino poaching since April 2015 to
see how rhinos
have been killed, how their horns have been removed
and generally the
modus operandi
of the poachers.   He has been accumulating his knowledge
and information over the years through interviewing suspects

throughout South Africa.  He is in contact with other
investigators and stakeholders in anti-poaching, like SANPARKS and
East Cape Parks.  He also has a wide range of informers
scattered throughout the country.  Poachers transport rhino
horns
harvested in the Eastern Cape to Gauteng either by road or
air.  They are paid in cash once a rhino horn has been delivered

in Gauteng.  Thereafter those horns are distributed over the
borders.
[10]
Based on the experience that he has gained
as a result of various investigations into rhino poaching, captain
Viljoen testified
about the
modus
operandi
of rhino poachers.  Rhino
poaching in the country is committed by two well-organised syndicates
with ties in Zimbabwe and
Mozambique.  The syndicate bosses
determine the location of the poaching and the number of rhinos that
should be poached.
Poachers have access to large game hunting
rifles, like .458 and .375 calibre rifles.  The serial number of
those rifles are
in most cases erased.  Generally, the poachers
are in the country illegally because they simply walk across the
border from
Zimbabwe and Mozambique into South Africa.  Those
who are in possession of passports have no record of their travel
into and
out of the country.  The stamps in their passports
usually do not correspond with the computerised register of the
Department
of Home Affairs.  He has accordingly learned not to
place much reliance on a stamp in the passport of a suspected
poacher.
[11]
Poachers use multiple cellphones and SIM
cards, the registration of which is based on false and corrupt
information.  One SIM
card would be used over a long period by a
poacher but when that poacher goes on a poaching operation, he would
change the SIM
card on that handset to make detection difficult.
[12]
Poachers have different roles.  Some
are shooters, some drivers, some handle high calibre firearms while
others carry water
or the harvested rhino horns.  They use at
least two vehicles when they poach.  Drivers would drive far
away from where
they had dropped off the poachers and wait for a call
before collecting the poachers and horns.  Poachers obtain their
information
about the location of rhinos from private persons who
reside on or near the property on which the rhinos are.  They
also obtain
their information from contractors working on the
property in question.  The informers are paid by the poachers
for that information.
Horns are removed from rhinos either by
sawing them off, chopping them off with axes or cutting them off with
knives.
[13]
Captain Viljoen testified that on 31 July
2018 he and captain Vos were performing anti-poaching duties in the
Makhanda area.
As a result of information that they had earlier
received, they were specifically on the lookout for two vehicles.
They came
across two bakkies just outside Makhanda.  The Ford,
driven by accused 1, with accused 2, 3 and 4 as his passengers, was
towing
the Isuzu, driven by accused 5, with accused 6 as his
passenger.  Having stopped them, he recognised accused 1 and 5
as persons
who had previously been arrested near Tarkastad.
Upon the search of the vehicles, drivers and passengers, he came
across
the items in the Ford about which captain Vos testified.
There was no reaction or explanation about the rifle from either
the
drivers or passengers when the discovery was made.  A new axe
with a yellow handle, still wrapped in plastic, a roll of
black
refuse plastic bags, two cans of Q20 oil, a pair of side cutters, a
yellow knife, a smaller knife, a passport belonging to
one Mondlane,
R12 350.00 in the jacket of accused 1, two rucksacks with
normal and work clothes (overalls and jeans)
in them, three pairs of
extra shoes in plastic bags and six cellphones were found in the
Ford.  Three of the cellphones belonged
to accused 1, while his
passengers had one cellphone each.  Accused 3 also had a knife.
There were four cellphones in
the Isuzu, three of them in the
possession of accused 5 and the other one in the possession of
accused 6.  A brand new axe,
also wrapped in plastic, yellow
latex gloves and one rucksack with clothing in it were also found in
the Isuzu.
[14]
Four of the accused had previously been
arrested near Tarkastad when accused 1 informed the police that his
name was Moses Ngomveni
and presented a Mozambican passport.
Accused 3 said that he was Trust Mlambo and accused 5 said that he
was Johannes Mlambo.
Accused 6 did not give a different name.
The accused were arrested for being in unlawful possession of a
firearm and conspiracy
to commit poaching of rhino.
[15]
After the arrest of the accused, captain
Viljoen obtained all the data on the cellphones found during the
search and at the homes
of the accused, with the assistance of the
cellphone service providers.  He then compared that data with
data which he had
in his possession which he had gathered from
previous rhino poaching incidents.  The rifle and ammunition
were also subjected
to ballistics analysis.
[16]
As the state’s case relied heavily on
similar fact evidence, I shall now deal with each of the previous
incidents of rhino
poaching or suspected rhino poaching to which
captain Viljoen made reference.
Great
Fish Reserve on 27 and 28 March 2016
[17]
It was discovered on 31 March 2016 that a
.458 calibre firearm was used to kill two rhinos at that reserve on
the night of 27-28
March 2016.  Only one rhino had its horn
chopped off.  The other was killed but not dehorned.  That
reserve is situated
next to the road between Makhanda and Fort
Beaufort.  There are three towers along that road which would be
triggered if a
cellphone is used on that reserve.
[18]
The records of the cellphone linked to
accused 5 showed that that cellphone moved from East London on 26
March 2016 and triggered
the tower at the Koonap Reserve Farm on the
road between Makhanda and Ford Beaufort at approximately 04h00 on
27 March 2016.
It was switched on and off on
occasion.  It triggered the towers at Governerskop on the road
between Makhanda and King William’s
Town, the Koonap tower
and the Skietkloof tower between approximately 16h21 and 04h26 on
28 March 2016, travelled around
King William’s Town at
06h04 and then from East London to Queenstown.
[19]
Captain Viljoen testified that accused 5’s
cellphone was near the scene at the time of the killing of the two
rhinos.
Great
Fish Reserve between 11 and 15 April 2016
[20]
On 14 April 2016 it was discovered that a
.375 calibre rifle was used to kill three rhinos on that reserve.
They had their
horns chopped off.
[21]
The records of the cellphone linked to
accused 5 showed that between 18h00 and 19h00 on 11 April 2016 it
triggered towers on the
road between King William’s Town and
Stutterheim.  On 12 April 2016 it triggered a tower between
Makhanda and King William’s
Town between 06h50 and 09h19,
triggered the Govermerskop, Koonap and Tempi towers several times
between 10h14 and approximately
04h21 on 15 April 2016 whereafter it
moved in the direction of Queenstown and then further north in the
direction of Gauteng.  That
cellphone was near the scene at the
time of the killing of those rhinos.
Kleindoringberg
Game Farm on 15 and 16 July 2017
[22]
The decomposed carcass of a rhino, which
had been killed by a bullet found in the carcass fired from a .375
calibre rifle, was discovered
during September 2017 on that farm,
which is situated along the road between Cradock and Middelburg.
Its horn had been chopped
off.  An axe, similar to the two axes
which were found in the Isuzu and Ford, was found near the carcass.
The state
of decomposition of the carcass suggested that the rhino
had been killed around 15 July 2017.  That farm has a tower
called
the Kleindoringberg tower.
[23]
The records of accused 1’s cellphone
and the one linked to accused 5 showed that on 15 July 2017 those two
cellphones travelled
from East London and were near the scene of the
killing on that day and moved back to East London.
[24]
The records of accused 1 cellphone number
ending with 3258 show that during the early evening of 14 July 2017
it moved from Humansdorp
in the direction of Gqeberha, it triggered a
tower at Brakfontein at 22h33, was switched off at 01h00 on 15 July
2017 when it triggered
the Raynerskop tower.  It was switched on
at 07h19 when it still triggered the same tower whereafter it
triggered various
towers in the Cradock area until 19h19 when it
triggered the Baroda tower.  The cellphone then moved to East
London where
it triggered a tower at 16h07.
[25]
The records of the cellphone linked to
accused 5 (ending with 6681) showed that it triggered the tower at
Swaershoek Pass on the
road between Cradock and Gqeberha at 07h36 on
15 July 2017, but was switched off from 07h42 until 13h29.  At
19h42 it triggered
the Baroda tower which is on the road to
Kleindoringberg, was switched off at 23h25 until approximately 05h00
on 16 July 2017.
At about 06h02 it triggered the tower at
Kleinplaas Farm which is situated just outside Cradock on the road
between Cradock
and Graaff-Reinet, whereafter it returned to East
London.
[26]
Captain Viljoen testified that, based on
the above records, the cellphones were moving around on the road
between Cradock and Graaff-Reinet
between 13h29 on 15 July 2017 and
06h02 on 16 July 2017.  Those cellphones also did not reach
Graaff-Reinet during that period.
Captain Viljoen testified
that there are no settlements, towns or houses where people live
along the road between Cradock and Middleburg.
The persons in
whose possession those cellphones were accordingly did not go to that
farm to visit people or to work.
Tarkastad
arrests on 16 August 2017
[27]
It is undisputed that on 16 August 2017 a
vehicle with four occupants was stopped by the police near
Tarkastad.  They were
accused 1, 3, 5 and 6.  The vehicle
was not registered in the name of any of them.  Cellphones, an
unlicenced large game
hunting rifle and a homemade axe were found in
that vehicle and taken to Cradock for investigations.  Accused 1
ultimately
accepted liability for the rifle and the charges against
the other accused were withdrawn.
[28]
The records of accused 1’s cellphone
showed that during the morning of 16 August 2017 it was moving from
East London, past
King William’s Town, Alice, Bedford to
Cradock where it triggered the Burnside tower near Kleindoringfarm at
approximately
11h00.  It triggered the Eskom tower at Cradock at
approximately 15h00 and thereafter moved on the road between Cradock
and
Tarkastad.  It was near Tarkastad at approximately 16h00.
[29]
The records of accused 3’s cellphone
showed that it moved from East London during the morning of 16 August
2017 and triggered
the Baroda tower just outside Cradock on the road
between Cradock and Middelburg at approximately 10h35.  It
triggered the
Burnside tower at 13h03, the Eskom tower at Swaershoek
Pass at 15h51 whereafter it was switched off.
[30]
The records of the cellphone linked to
accused 5’s cellphone, ending with number 6681, showed that at
05h33 on 16 August 2017
it was in East London and then moved past
Alice and Fort Beaufort and triggered the tower at Kleindoringberg at
10h56 and the Burnside
tower at 11h12.  It moved to Cradock and
thereafter to Tarkastad.
[31]
The records of accused 6’s cellphone
showed that at approximately 02h00 on 16 August 2017 it was
in East London
whereafter it triggered the Telkom tower near
Cookhouse at 09h45, the Baroda tower at 10h30, the Eskom tower at
Cradock at 11h53
and the Burnside tower at 12h56.  It later also
moved to Cradock and thereafter to Tarkastad.
[32]
The cellphone records of all four accused
who were arrested near Tarkastad on 16 August 2017 show that
those cellphones triggered
the same towers between East London,
Cradock, Kleindoringberg and Tarkastad on more or less the same times
on that day.  Captain
Viljoen testified that those records do
not support an inference that a rhino at Kleindoringberg was killed
on 16 August 2017 because,
when the suspects were stopped and
ultimately arrested at Tarkastad on that day, a rhino horn was not
found in their possession
and the cellphones were not at
Kleindoringberg for a long time on that day to support an inference
that they spent sufficient time
on that farm to kill a rhino.
Lourens
de Lange Municipal Game Reserve between 24 and 25 December 2017
[33]
Between 23 and 25 December 2017 a heavily
pregnant rhino cow was killed with the bullet fired from a .375
calibre rifle on that
reserve, which is situated along the side of
the road between Queenstown and Aliwal North.  It had its horn
chopped off.
[34]
The records of accused 1’s cellphone
showed that it travelled from East London to Queenstown on 24
December 2017 where it
was active until about 11h00 on the following
day.  It was inactive until approximately 17h42 when it was
located at the Mlungisi
Stadium in Queenstown.  It moved in the
direction of East London where it triggered a tower at about 02h00 on
26 June 2017.
[35]
The records of the cellphone linked to
accused 5 showed the same movement as accused 1’s cellphone
during the same period.
It was inactive between about 09h00
until about midday on 25 December 2017.  It became inactive
again at approximately 14h13,
but was located at the Mlungisi Stadium
at approximately 16h35.  It then moved in the direction of East
London on 26 June
2017.  The records of those two cellphones
showed that they were near the scene at the time of the killing of
that rhino.
Kleindoringberg
Game Farm on 24-25 February 2018
[36]
During the night of 24-25 February 2018 two
rhinos were killed on that farm by the use of a rifle that fired .375
calibre ammunition.
They had their horns chopped off.
[37]
The records of accused 1’s cellphone
showed that on 23 February 2018 it moved from King William’s
Town to Alice and
it later triggered a tower at Daggaboer near the
road between Cradock and Cookhouse.  It triggered the tower at
Kleindoringberg
from 00h01 until 00h42 on 24 February 2018, the
Burnside Telkom tower until it was switched off at 11h50 until 21h53,
the Kleindoringberg
tower until 22h01 and was located in East London
at 05h39 on 25 February 2018.
[38]
The records of the cellphone linked to
accused 5 (ending with 7703) showed that until 21h07 on 23 February
2018 that cellphone was
on the road between King William’s Town
and Alice.  It triggered the Burnside tower at 21h37 and at
06h28
on 24 June 2018, the Kleindoringberg tower between 17h24 and
22h39, the Burnside tower at 22h49, a tower in Cradock at 23h11, the

Raynerskop tower at 22h24, a tower at Daggaboer at 23h35 and a tower
near Cookhouse at 23h51 when it was switched off until 01h35
on 25
February 2018 when it was in the East London area.
[39]
The records showed that those two
cellphones followed the same route because they triggered the same
towers from East London to
the scene of the killing at
Kleindoringberg and back to East London.
Thorndale
Farm between 7 and 9 June 2018
[40]
The decomposed carcass of a dehorned rhino
was discovered on 21 June 2018 on that farm near Kirkwood.
It had been killed
with a .375 calibre bullet, which could not be
linked to any particular rifle because of the nature of the damage to
that bullet.
The remaining stump of the rhino had been chopped
out of its head.  Because of the state of decomposition of the
carcass,
it was suspected that the killing must have happened about
10 to 14 days before it was discovered.
[41]
The records of accused 1’s cellphone
showed that that cellphone was on its way from East London to
Queenstown on 6 June 2018,
but was back in East London at about 03h00
on 7 June 2018.  However, it located at Kirkwood at about 06h45
on that same day.
It moved between Kirkwood and Gqeberha and
moved to Addo on that day.  At approximately 14h33 on 9 June
2018 it triggered
the Theescombe tower.
[42]
The records of the cellphone linked to
accused 5 (ending with 8365) showed that that cellphone was
located at Addo at approximately
06h26 on 7 June 2018 whereafter it
moved to Kirkwood.  Like accused 1’s cellphone, it also
moved between Kirkwood and
Gqeberha via Kariega and was back in
Kirkwood at 21h58 on 8 June 2018, where it remained on 9 June 2018.
It essentially triggered
all the towers that accused 1’s
cellphone triggered during that period, they remained in Gqeberha on
the day of the killing
of the rhino.
[43]
The records of those two cellphones showed
that they were near the area when the rhino was killed.
Kragga
Kamma Game Reserve on 28 and 29 June 2018
[44]
A rhino cow was dehorned during June 2018
with only its stump remaining.  Its carcass was discovered on
the reserve a few days
thereafter on 29 June 2018.  It was
killed with a bullet that was recovered from the carcass and which
was fired from the
rifle that was found in the tailgate of the Ford.
The rhino had the remaining stump of its horn chopped out of its nose
during
the night of 28-29 June 2018.
[45]
The records of accused 1’s cellphone
showed that at 20h16 on 25 June 2018 it moved between Makhanda and
Gqeberha.  At
approximately 23h06 and later on 26 June 2018 it
was located near the Theescombe tower, which is situated next to the
site of the
killing.  It was thereafter on call forwarding.
It was located at that same tower at 22h45 on 28 June 2018
whereafter
it went on call forwarding again.
[46]
The records of accused 2’s cellphone
showed that on 25 June 2018 it also moved from Makhanda to Gqeberha.
At approximately
16h37 on 28 June 2018 it triggered the Theescombe
tower.  At 18h36 that cellphone received an SMS while it was
still near
the Theescombe tower.  The next record is only at
approximately 05h00 on the following day, when that cellphone was in
East
London.
[47]
The records of accused 4’s cellphone
showed that that cellphone was in East London on 19 June 2018 and in
Gqeberha on 20 June
2018.  It was still in Gqeberha at 14h58 on
27 June 2018.  It showed no activity on 28 June 2018 but
triggered a tower
in Gqeberha at 07h25 on 29 June 2018.
[48]
The records of the cellphone linked to
accused 5 (ending 8365) showed that that cellphone moved from
Makhanda to Gqeberha on
25 June 2018.  At approximately 22h00 it
moved in the vicinity of Dear Park, Stanford and Dora Nginza
Hospital.  Those
areas are a fair distance away from the
Theescombe tower.  It was located near that tower between 00h07
and 00h12 on 29 June
2018.  During that period there was a call
from the cellphone linked to accused 5 to accused 1’s
cellphone.  A
few minutes thereafter accused 1’s cellphone
made a call to accused 5’s cellphone, whereafter accused 5’s
cellphone
called accused 1’s cellphone, while accused 5’s
cellphone was at the Theescombe tower.  The records show how
that
cellphone moved away from Theescombe, out of Gqeberha, past
Makhanda and landed up in East London just after 16h00 on 29 June
2018.
[49]
The above records show that those
cellphones, with the exception of accused 4’s cellphone which
was inactive on 28 June 2019,
triggered various towers from
East London towards Gqeberha, that they were located near the
scene at the time of the killing
of the rhino, and then triggered
towers as they moved towards East London on 29 June 2018.
Shamwari
Game Reserve on 2 and 3 July 2018
[50]
The carcasses of a rhino cow and a calf
were discovered at Shamwari on 7 July 2018.  It was determined
that they were killed
on approximately 2 or 3 July 2018 with the same
.375 calibre rifle as the one which was found in the tailgate of the
Ford.
Both had their horns chopped off.  During the course
of his investigation, captain Viljoen came across the gate register
which
is kept in respect of vehicles travelling on the public road
through Shamwari.  That register showed that an Isuzu, with the

same registration number as the one that was stopped on 31 July 2018,
used that road and that the driver of the Isuzu entered his
name as
Johannes.
[51]
The records of the cellphone of accused 1
show that on 1 July 2018 that cellphone was on the N6 road between
East London and Queenstown
and in East London at 13h21.  It
located near Peddie at about 17h00.  The last activity that was
recorded on that cellphone
was at about 17h47 on that day.  The
recorded activities commenced on 2 July 2018 at about 07h42
when the cellphone
was located near the Olifantskop tower,
Brakfontein in the Paterson/Alicedale area, where it was for most of
that day.  From
about 19h32 on that day until 19h00 on the
following day that cellphone was on a call forwarding setting.
It was located
on the N6 road leading to Queenstown at approximately
20h19 on 3 July 2018.  At approximately 21h06 on that same day
it was
located in East London.  The following day it travelled
through the Free State and at approximately 08h45 it was near
Centurion,
Gauteng.  It returned to East London on that same
day, 4 July 2018.
[52]
The cellphone records of accused 2 show
that at approximately 17h40 on 1 July 2018 that cellphone was on the
N2 road near Peddie.
At approximately 01h05 on 2 July 2018 it
was at Alicedale, proceeded towards Olifantskop and back to
Alicedale.  Later that
day it was located in Makhanda, but
returned to Alicedale.  It moved back to Makhanda, then moved in
the direction of Gqeberha,
but triggered towers near Salem and Port
Alfred and back to Makhanda.
[53]
The cellphone that captain Viljoen linked
to accused 5 show that on 1 July 2018 it was first located near Fort
Beaufort, then East
London and at approximately 17h44 it was on the
N2 road near Peddie, like accused 2’s cellphone. At
approximately 10h00 on
2 July 2018 it was located near
Patterson.  Later that day it was near Olifantskop and at
Alicedale at approximately
19h37.  At approximately 23h10 on 2
July 2018 it was located in East London.
[54]
In summary, the cellphone records of
accused 1, 2 and 5 show that between 1 and 3 July 2018 those
cellphones moved from East London
to Peddie to Olifantskop, which is
near Shamwari, and back to East London.  Those records showed
that those two cellphones
were on the scene of the killing of the
rhino and its calf.  Captain Viljoen was of the belief that the
trip to Gauteng would
suggest that a rhino horn or horns were
transported to that province.
[55]
That concluded the evidence of the state.
It was on the basis of the results of the analysis and comparison of
the above cellphone
records and other information, that captain
Viljoen was of the view that accused 1, 3, 5 and 6 were involved in
the poaching of
rhinos in the Eastern Cape since 2016 and that all
the accused were on their way to kill a rhino when they were arrested
on 31
July 2018.
[56]
Accused 1 testified that on 31 July 2018 he
was at home in East London when he received a telephone call from
accused 5 who informed
him that he was on his way to Gqeberha, that
he was near roadworks on the road leading to Makhanda, that his
vehicle had some mechanical
problems and he required someone to tow
the vehicle to a mechanic.  He agreed to assist accused 5 who he
knew very well for
a long time.  He could not give an estimated
time of arrival because he had lent his vehicle, the Ford, to accused
2 who was
running a business.  He contacted accused 2 and
requested him to return his vehicle.  When accused 2 arrived, he
told
him that he would have to accompany him to assist accused 5.
They left East London between 1 and 2 o’clock that
afternoon
and met up with accused 5 about two hours thereafter.
[57]
He towed the Isuzu with the Ford.
Accused 3 and 4 became passengers of the Ford. Accused 5 was the
driver of the Isuzu with
accused 6 as his passenger as it was being
towed in the direction of Makhanda.  Having been pulled off by
the police, at their
request he granted them permission to search the
Ford.  The first place the police searched was the tailgate,
where they found
the rifle, silencer and ammunition.  He knew
nothing about those items.  Before the search, accused 2 did not
inform
him that he had placed those items in the tailgate.  The
police also found R12 350.00 in his jacket which was found
inside
the Ford.  A boilermaker in Zimbabwe had given him that
money to buy some tools, a welding machine and a grinder in South
Africa. They also found a bag containing old clothes in the Ford.
He testified that one must always anticipate a breakdown
and the need
to use old clothes to wear and to sleep in.  He and his
co-accused were arrested.  He denied that he had
conspired with
any person to poach rhino.
He
testified that a person in his neighbourhood requested him to
purchase an axe.  Before they left East London on the day
of
their arrest, he purchased an axe.
[58]
Accused 1 admitted that when he was
arrested near Tarkastad on 16 August 2017, he used the name Moses
Ngoveni and that he was using
a Mozambican passport.  His
explanation for having used that name was that in 2017 “
I
was living in Zimbabwe, but I was living in Mozambique.  So I
was using them in Mozambique
”.
At that stage he had not obtained a Zimbabwean identity document,
only Mozambican documents.  However, he subsequently
abandoned
the Mozambican documents when he decided to reside in Zimbabwe.
Despite having been asked by his counsel why he
used the name
of Moses Ngoveni when he resided in Mozambique, he offered no
discernable explanation.
[59]
He testified that he was unable to dispute
that his cellphone triggered the towers, as testified to by captain
Viljoen.  His
explanation therefor was firstly, that he would
lend his cellphone to one Patrick Khumbane, his business partner
since before his
arrest near Tarkastad, and he was unaware as to
which places he would be visiting.  The reason that he made his
cellphone
available to Mr Khumbane was that, when he was unable to
attend to his many customers, Mr Khumbane could attend to them.
Secondly, he explained that he travelled extensively around the
Eastern Cape to deliver goods for fellow Zimbabweans.  In some

instances, he did not know the name of the town or city through which
he travelled or the area in a city or town that he visited.
He
testified that, because he did not know where the Shamwari, Kragga
Kamma, Thorndale and Laurence de Lange Game Reserves and

Kleindoringberg Farm were, he was unable to give an explanation for
the fact that his cellphone triggered the towers in those
vicinities.  He testified that, although his cellphone might
have triggered the towers in the vicinities where rhinos were

previously killed, he denied that he was at any of those scenes.
[60]
He confirmed captain Vos’s evidence
regarding the items that were found at his home, namely old axes.
He found those
axes in his landlord’s building when he moved
in. The only difference was that, according to him, the axes were not
wrapped
in plastic.  He used the other plastic, that captain Vos
testified about, to wrap items of furniture or food items in his
transport business, to protect them against the elements.
[61]
Accused 1 testified that he could not
remember that he travelled with accused 5 on the same day from
Humansdorp and Jeffrey’s
Bay to Cradock.  He and accused 5
never travelled together on business trips.
[62]
He testified that he sometimes travelled
with Mr Khumbane to Kirkwood where he owned a shack where they would
be accommodated.
He could not deny that during June 2018 his
cellphone and the one he claimed belonged to Mr Khumbane triggered
towers near Kirkwood
and Theescoombe at Gqeberha.  That was
about the time when, on the state’s case, a rhino was killed
near Kirkwood and
on 28 June 2018 another rhino was killed at Kragga
Kamma.  Those cellphones triggered towers as they moved back to
Kirkwood.
His evidence was that he and Mr Khumbane
travelled to Gqeberha on many occasions.  They would travel from
East London
to Kirkwood before going to Gqeberha.
[63]
Accused 2 testified that he arrived in the
country from Zimbabwe in 2017.  Prior to his arrest he lived in
East London.
He has known accused 1 for a long time as a friend
and also a person with whom he had done business.  He testified
that about
4 or 5 days before their arrest, he went to a nearby bush
to relieve himself.  He saw something wrapped in black plastic.

Upon investigation he realised that it was a firearm.  He
concealed it in the bush for a few days.
[64]
Three days before their arrest, accused 1
returned from Zimbabwe.  On that same day accused 2 requested
him to use the Ford.
Accused 1 handed it over to him.
During the night before their arrest, he put the rifle, silencer and
ammunition that he
had picked up in the bush, in the tailgate of the
Ford, hoping to use accused 1’s passport to report the
discovery of those
items to the police.  He had not told accused
1 or the police about his discovery before their arrest.
[65]
On 31 July 2018 he received a call from
accused 1 who requested him to return his Ford because he had been
required to tow another
vehicle with it.  Despite the records of
the cellphones that he and accused 1 used when they communicated,
showing that the
first call was made by him to accused 2 at about
10h00 and that he was at Beacon Bay and China Town, he insisted that
he was at
his workplace at Chalumna, that he moved to China Town
after he had received a call from accused 1 between 08h00 and 08h30
thast
day.  He returned to accused 1 and handed the Ford to
him.  When he wanted to return to his workplace, accused 1 told

him that he must accompany him to assist the driver of the other
vehicle.  The two of them then set off to tow the other
vehicle.
[66]
He knew all the occupants of the Isuzu from
the township in which they all reside.  As they were towing the
Isuzu, they were
stopped by the police who searched them and the
vehicles.  They discovered the rifle and other items.  The
police found
a Mobicel cellphone and about R200.00 in his
possession.  He claimed that the cellphone that was found in
possession of accused
5 was also his cellphone.  The explanation
therefor, we were warned by accused 2, was a long one.  He
testified that
he was with his wife before she travelled from East
London to Zimbabwe in accused 1’s vehicle driven by
Mr Khumbane.
He told Mr Khumbane that he wanted to buy a
cellphone so that he could give his old cellphone to his wife to
enable him to communicate
with her while she was in Zimbabwe.
Mr Khumbane told him that there was no need to buy a new cellphone
because he could use
his (Mr Khumbane’s) cellphone.  He
could then assist Mr Khumbane’s customers if they called
him while he
was in Zimbabwe.  Having handed his cellphone with
the number ending 8365 to him, Mr Khumbane then left for Zimbabwe
with
his wife.  When he was near his home, he saw people loading
items in accused 5’s vehicle.  He assisted them.

When he arrived inside his house, he realised that he had misplaced
the cellphone that Mr Khumbane had handed to him.  He
saw that
cellphone thereafter for the first time when accused 5 used it at the
place where they were arrested.  He had no
idea how the
misplaced cellphone landed up in accused 5’s possession.
He testified that accused 5 had told him
that he had left the
cellphone in the Ford.
[67]
Accused 2 was unable to dispute that
accused 1’s cellphone number ending 1227 was saved on that
cellphone under the name of
Moses, that accused 4’s cdllphone
number ending 5601 was saved under his first name of Simba and that
his cellphone number
ending 3282 was saved on that cellphone under
his first name of Trymore.  He initially testified that the only
cellphone number
that he gave to Mr Khumbane was the one ending 7909,
but later changed to also include the one ending 3282.
[68]
He was unable to dispute that the rifle
that was found in the tailgate of the Ford was ballistically linked
to the killing of rhinos
at Kragga Kamma and Shamwari.  He
testified that the rifle was in his possession since he found it in
the bush until their
arrest.  He denied that he was involved in
rhino poaching at Kleindoringberg during September 2017, Lourens
de Lange
between 23 and 25 December 2017, Kleindoringberg between 24
and 25 February 2018 or Thorndale between 6 and 10 June 2018.
[69]
He denied that he ever used a cellphone
with either number [....] or [....], despite having made an admission
in terms of section
220 of the Criminal Procedure Act that he had
been using cellphones with those numbers since 2016.
[70]
He testified that when they arrived in
Cradock before their arrest near Tarkastad, accused 5, who was the
driver, dropped them off
to buy food and said that he was going to
meet someone.  He returned a while later, picked them up
whereafter they drove to
a park outside Cradock.  Although they
were sitting round a table to have their food, he did not see accused
1 picking up
the firearm.
[71]
His explanation for the cellphone number
ending 6681 triggering the tower near Kleindoringberg on 16 August
2017 was because he
had left that cellphone in the vehicle when
accused 5 went to meet a person.  The cellphones of the other
occupants of that
vehicle, excluding the one in accused 5’s
possession, also triggered that tower.
[72]
He confirmed that, when he was arrested
near Tarkastad, he gave the name of Trust Mlambo.  He explained
that Mlambo was his
maternal surname, Trymore being his correct name
and Chauke being his paternal surname.  He furthermore explained
that the
reason that he did not inform the police of his other name
and surname was because the police used Afrikaans when they spoke to

him, a language that he did not understand.
[73]
He was unable to dispute captain Viljoen’s
evidence that, when he visited Gqeberha, he used the cellphone ending
with number
3282.  He said that he was with Mr Khumbane, but he
denied having been near Kragga Kamma, although he had no idea where
it
was.  He was furthermore unable to dispute that his cellphone
triggered a tower at Kragga Kamma.  He went to Gqeberha
with Mr
Khumbane on many occasions.  Not once did accused 1 accompany
them.  He denied that he ever spent four days in
Gqeberha with
Mr Khumbane, albeit that the records of the cellphone ending with
number 3282 and the one ending 8365 (and allegedly
in the possession
of Mr Khumbane) triggered a tower at Kragga Kamma between 25 and 28
June 2018.  He denied that he ever travelled
with Mr Khumbane to
meet accused 1 in Gqeberha.
[74]
Accused 2 did not dispute that, at the end
of June 2018 after his return from Gqeberha, the SIM card of his
handset was changed
to a number ending 4124.  However, he denied
that he used a Samsung cellphone, despite the records showing that it
was a Samsung
cellphone.
[75]
Accused 3 testified that he illegally
arrived in the country from Zimbabwe a few months before his arrest.
Upon his arrival
in East London he resided with a person called
Darkie, such accommodation having been arranged by accused 5, his
brother-in-law.
He did piece jobs in the construction
industry.  He knew accused 1, who he had met soon after his
arrival in East London.
Accused 1 had earlier transported his
corrugated iron sheets to Zimbabwe.  The next time he saw him
was when he arrived in
the Ford when they were stranded along the
road.  Darkie introduced him to accused 2 who thereafter invited
him from time
to time to do piece jobs with him.  He and accused
4 saw each other in the street in which they lived.  He asked
accused
4 to bear him in mind if he managed to secure jobs.
They thereafter did a few piece jobs together.  He saw accused 5

when he visited his sister.  He also did piece jobs with accused
6, who used to visit him at home.
[76]
As at 31 July 2018 he resided alone in the
house which his sister shared with accused 5, the latter having
returned from Zimbabwe
on that day.  About three days before
then, accused 4 had told him of a construction job in Valencia and
invited him to accompany
him.  He in turn told accused 6 about
the job.  A day before they left for Valencia, he and accused 4
had agreed to hike
to Valencia the following morning.  He learnt
that accused 5 was going to Gqeberha and asked him for a lift to
Valencia.
He agreed.  The following morning, he contacted
accused 4 and told him about accused 5.  Later that morning he,
accused
4 and 5 went in the Isuzu to collect accused 6 from his
home.  They went to China Mall where accused 5, who was the
driver,
went into a shop and returned shortly thereafter.  He
did not see what he bought.  The four of them then set off for
Valencia in the Isuzu.  He had a small bag containing work
clothes, consisting of a pair of black trousers and a matching
shirt.  He also took along a trowel, a pickaxe and a shovel to
build a shack.  He did not take food, eating utensils or
bedding
along.  Under cross-examination he testified that he forgot to
give instructions to his counsel about those items,
hence the absence
of questions in that regard when the state witnesses testified.
[77]
Only accused 4 knew where Valencia was.
On their way to Valencia, the Isuzu broke down.  Eventually they
were assisted
by accused 1 who arrived in the Ford accompanied by
accused 2.  He and accused 4 moved to the Ford before it towed
the Isuzu
in the direction of Makhanda.  After the police had
pulled them over, they found a knife, a Mobicell cellphone and the
small
bag in his possession.  He did not see the rifle or any
other item that the state witnesses testified about which were
removed
from the vehicles.
[78]
A few days after their arrest the police
took him to his sister’s house where they found 3 cellphones
and many other
things.  Those cellphones belonged to Darkie, who
had requested him to take them in for repairs.  He distanced
himself
from what was put to captain Vos, namely that Darkie had
given those cellphones to him.
[79]
He testified that he has never been to
Alicedale, Kragga Kamma, Kirkwood or Tarkastad.  He did not know
a person by the name
of Trust Mlambo, only a Trymore.
[80]
Accused 4 testified that he learnt of a job
in Valencia which required to be done by him and two other persons.
About three
days before their arrest, he and accused 3 discussed the
trip to Valencia and that it would take about two months to complete
the
job.  He told accused 3 on the day before their departure
that they would be leaving the following day.  He told him that

they would be accommodated in a house and be provided with food and
tools by the person providing the job.  It was not for
the first
time that he worked for that person.
[81]
On the following morning accused 3 called
him while he was still at home to inform him that he found someone
who was going to Gqeberha,
that that person was willing to give them
a lift and that he should contribute R100.00 towards fuel.
[82]
Accused 5 testified that he has been in the
country since 2016.  He knew accused 1, 2, 3 and 6 before their
arrest but met
accused 4 for the first time on that day.  He
left for Zimbabwe on 9 June 2018.  After his arrival in Zimbabwe
a person
by the name of Thomas arrived with the Isuzu in Zimbabwe.
Thomas made a report to him about a cellphone.  Since Thomas
was
not called as a witness to confirm what he had allegedly said to
accused 3, the content of the report is hearsay evidence and

accordingly inadmissible.  Thomas handed a cellphone to him.
Thomas drove the Isuzu until he reached Pretoria from where
accused 5
testified he took over.  He arrived in East London on the
evening of 29 July 2018.  He could not enter his
one-roomed
dwelling because accused 3 was fast asleep inside.  The landlord
arranged for him to sleep in a different dwelling
on the same
premises.
[83]
Accused 3 borrowed his cellphone when he
saw him the following morning.  Having handed his cellphone to
accused 3, he then
went to the carwash to have the Isuzu washed.
At the carwash he discovered two cellphones in the cubbyhole of the
Isuzu,
one of them being a Samsung.  He put those cellphones in
his pocket before the Isuzu was washed.  He also tried to hand

the cellphone that Thomas had handed to him to the owner thereof, but
could not find him.  He used that cellphone to call
a person in
Gqeberha and also to call accused 1 when the Isuzu broke down.
Accused 3 also used that cellphone while they
were travelling in the
direction of Makhanda on the day of their arrest.  He could not
tell how many calls accused 3 made
on that cellphone and to whom.
[84]
He testified that he and accused 3
discussed the trip to Valencia for the first time that morning.
Accused 3 told him of the
job in Valencia and he said that he was on
his way to Gqeberha to collect a sick person.  Accused 3 asked
for a lift and he
agreed.  Before he left East London he first
went to China Town to buy an axe.  His explanation for
purchasing the axe
before he left for Gqeberha was that his father
had asked him to purchase an axe to be used in Zimbabwe.  He
feared that it
might be too late to purchase it on his return with
the sick person.  He denied that he was with accused 1 when
he purchased
the axe at China Town.  Accused 3, 4 and 6 were in
the Isuzu with him when they travelled in the direction of Gqeberha.

When they were searched, the police found about R3 000.00 on him and
took it.  He knew nothing about the firearm that was
found in
the tailgate of the Ford.  They also found three cellphones on
him, the one that Thomas had handed to him and the
other two that he
had earlier found in the cubbyhole.  He testified that he had no
knowledge of a cellphone with the number
073 807 6681 and that
he did not have a cellphone of his own.  The last cellphone that
he owned was the one that the
police took when he was arrested near
Tarkastad.
[85]
Accused 5 denied that he made calls when he
was at Cambridge and China Town or that he called accused 1 twice at
about 09h00 on
that day or that that cellphone was still in East
London until 12h00.  He later testified that he was unable to
dispute the
times when those calls were made, but testified that they
may have been made by accused 3.
[86]
He confirmed that, when the police searched
his home, they found some plastic bags, an electronic scale and the
three cellphones
that accused 3 claimed belonged to him.  His
explanation for his possession of the scale was that he purchased it
for the
shop that he was operating in Zimbabwe.
[87]
He furthermore confirmed that he also used
the name of Johannes, but that he has never been to Shamwari.
He was unable to
explain why the registration number of the Isuzu was
entered into the gate register at Shamwari on 24 June 2018 and why
the driver
indicated that his name was Johannes.  What he knew
was that he was at home on that day and that someone else might have
used
the Isuzu.  He testified that the furtherest point that he
had travelled from East London was where they were arrested on 31

July 2018.  He has accordingly never been to Gqeberha, Jeffrey’s
Bay or Kirkwood.  He has been to Cradock on the
day when they
were arrested near Tarkastad.  He has also driven past
Queenstown and had no idea where the Lourens de Lange
Game Reserve
was.
[88]
When he and accused 1, 3 and 6 were
arrested near Tarkastad, he informed the police that he was Johannes
Muya, which, according
to him, was also his name and the correct
spelling of his surname.  However, the police recorded his
surname as Mlambo.
He testified that on occasion he also uses
the name Sithole.  His family know him as Johnny Sithole.
He knows accused
1 as Johannes, not his surname.
[89]
He testified that when they were arrested
near Tarkastad, he was on his way to the North West while the other
accused said that
they were going to Johannesburg.  He went via
Cradock because he had to drop tools in Cradock.  That is what
he did in
Cradock.
[90]
He denied that he was on the road between
Cradock and Middelburg on that day.  He was accordingly unable
to explain why the
cellphones which were in his and the occupants’
possession triggered the tower at Kleindoringberg, other than to
testify
that when he met the person who was meant to give him petrol
money, that person only had a voucher.  He then handed the
vehicle
to that person to drop off the tools while he went to the
bank to exchange the voucher for cash.  During his later
evidence
he testified that he left his cellphone in the vehicle when
the other person went to drop off the tools.  He had no idea
where
that person went.
[91]
He testified that he used a cellphone with
the number [....] until it was taken by the police when he was
arrested near Tarkastad.
He had no idea why accused 1 said in
his warning statement to the police that he was in possession of that
cellphone.  He
denied that he told the police that the cellphone
with the number ending 6681 belonged to him.  Accused 1 did not
know his
cellphone number and he did not know accused 1’s
cellphone number.
[92]
He was surprised to learn that the
cellphones ending 6681 and 3258 were active at Jeffrey’s Bay on
13 July 2017 because, according
to him, those cellphones were in his
and his wife’s possession at that time.
[93]
Accused 6 testified that he arrived in the
country in 1996 or 1997.  Before their arrest, he knew only
accused 2, 3 and 4 although
he used to see accused 1 and 5 in the
neighbourhood.  He later testified that he had dealings with
accused 1 before their
arrest, because he had previously transported
his wardrobe to Johannesburg and he was arrested with him near
Tarkastad.  About
2 or 3 days before their arrest accused 3 told
him of the job in Valencia.  They had arranged to hike to
Valencia.  Accused
3 told him on the morning of the trip that he
had managed to arrange a lift.  He was later picked up from
home.  Accused
5 was the driver of the Isuzu.  On the way
to Valencia the police stopped them.  The police found his
cellphone and a
bag containing two pairs of trousers, a fish line, a
knife and his toiletries in his possession.
[94]
He testified that he was on his way to
Johannesburg when he and others were arrested near Tarkastad.
Accused 2 had told him
of a vehicle that was going to Johannesburg
because he knew that he wanted to go to Johannesburg.  He had no
dealings with
either accused 1 or 5 in respect of the trip to
Johannesburg.  When they arrived in Cradock, accused 5 dropped
them off at
a supermarket and drove off.  He, accused 1 and 3
bought food and waited for accused 5.  After he had picked them
up,
they drove to a park outside Cradock where they had a meal.
He did not see the firearm being picked up or placed in the vehicle.

He also did not see it inside the vehicle as they were travelling
towards Tarkastad after the meal.  Near Tarkastad the police

confiscated his cellphone which was never returned to him.  He
thereafter purchased a second-hand cellphone which was in his

possession on 31 July 2018.  Its number, ending with 4901, was
the same as the one that he used when he was arrested near
Tarkastad.
[95]
On the day of their arrest outside
Makhanda, he called accused 3 from his cellphone before they picked
him up.  He called accused
3 on the same cellphone number that
he used when he told him that he had managed to arrange a lift.
That was his evidence
despite the fact that the cellphone records did
not reveal a call from his cellphone to that number.  Instead,
those records
showed that on that day he telephoned accused 1 five
times between 07h00 and approximately 16h00 and accused 1 called
him
at 11h15.  That concluded the evidence of the accused.
[96]
It is against the background of the above
evidence that Mr Coetzee submitted that the accused should be
convicted, whereas Mr Mqeke,
attorney for accused 1 and 2, and Mr
Stamper, counsel for the remaining accused, submitted that they
should be acquitted because,
so the submission went, the state failed
to prove its case against the accused in respect of any of the
counts, save for accused
2 who should be convicted on counts 3 and 4,
Mr Mqeke submitted.  At the conclusion of the hearing, Mr
Coetzee conceded that
the accused could not be convicted on both
counts 1 and 2 because that would amount to a duplication of
convictions.  In my
view, that concession was correctly made.
Regard being had to the nature of the charges against the accused on
counts 1 and
2 and the evidence that was adduced to prove them, it is
clear that the same evidence required to prove the charge on count 1
is
required to prove the charge on count 2.  Mr Coetzee
accordingly did not persist with count 1 but submitted that the
evidence justifies a finding that the state proved its case beyond
reasonable doubt on counts 2, 3 and 4.
[97]
The evidence of captains Vos and Viljoen
was not seriously challenged.  Captain Viljoen, in addition to
giving evidence about
his involvement in the investigations of rhino
poaching since 2016 basically testified about the records of the
various cellphones.
That evidence was effectively admitted,
save in respect of accused 5.
[98]
The evidence includes the admissions that
the accused made at the commencement of the trial.  Once the
accused made those admissions
they relieved the state of the duty to
prove those facts.  Of relevance for present purposes are the
admissions that the rifle
that was found in the tailgate of the Ford
had fired the bullets that were recovered from the carcasses of one
rhino at Kragga
Kamma and two rhinos at Shamwari and, save for
accused 5, that the cellphone numbers set out on a list, which had
been handed into
court as evidence, had been used by them between
2016 and when they were arrested on 31 July 2018.  That list
showed that
during that period the following accused were in
possession of the cellphones with the following numbers:
98.1.
Accused 1: [....] and [....];
98.2.
Accused 2: [....] and [....];
98.3.
Accused 3: [....];
98.4.
Accused 4: [....] and [....]; and
98.5.
Accused 6: [....].
[99]
It was admitted by the accused that data
contained in those cellphones was lawfully obtained from the various
cellphone providers
and that such data was correctly captured on
compact discs which were made available to the court and the accused
through their
legal representatives.  Both policemen made a
favourable impression as witnesses.
[100]
The evidence as to what happened at the
scene of the accuseds’ arrest is largely undisputed.  That
evidence was that,
as the Ford was towing the Isuzu, the police
stopped them, searched the two vehicle and their occupants,
discovered the items that
captains Vos and Viljoen testified about,
inclusive of a dismantled rifle, a silencer fitting that rifle and 9
live rounds of .375
ammunition hidden in the tailgate of the Ford.
The search also produced a roll of black plastic refuse bags, two
brand new
axes, knives, extra clothing and shoes in three backpacks
and eleven cellphones.  The evidence relating to the search
of
the homes of the accused which was conducted by captain Vos was also
largely undisputed.  That search produced an electronic
scale,
side cutters, hacksaws, two more axes, black plastic refuse bags and
cellotape similar to those wrapped around the concealed
rifle.
Captain Vos testified that his attention was drawn to the above items
because they are classical tools of the trade
in the poaching of
rhinos.  His evidence in that regard was corroborated by captain
Viljoen.
[101]
In
addition to the above evidence, the state relied on similar fact
evidence in respect of the events leading up to the arrest of
some of
them near Tarkastad, activity around the cellphones in the possession
of the accused or linked to them at the occasions
when other rhinos
were killed and the ballistic evidence linking the rifle to previous
rhino killings.  The general rule is
that similar fact evidence
is inadmissible because it is inherently prejudicial.  It will
be admissible only if it is both
logically and legally relevant and
whether, when looked at in its totality, such evidence has sufficient
probative value to outweigh
its prejudicial effect.  It is a
matter of degree in each case.
[6]
[102]
Mr
Coetzee submitted that the similar fact evidence that the state
adduced should be admitted because firstly, it is both logically
and
legally relevant to the allegations that the accused committed the
offences with which they have been charged; and secondly,
the
admission of that evidence outweighs the prejudicial effect on the
accused.  Mr Mqeke did not make any submission on the

admissibility of the similar fact evidence.  Mr Stamper
submitted that, as similar fact evidence constitutes, as a rule,
a
form of circumstantial evidence, the rules relating to inferential
reasoning should apply.  That submission contains a concession

that the similar fact evidence should be admitted, but such
concession does not mean that the state proved its case beyond
reasonable
doubt.  Mr Stamper submitted that, even after the
admission of the similar fact evidence, the state failed to show that
the
inference sought to be drawn is consistent with all the proved
facts and that those proved facts exclude every reasonable inference

save the one sought to be drawn.
[7]
In this regard, Mr Stamper submitted that, even after the
admission of the similar fact evidence, it cannot be said that,
the
only inference to be drawn on the facts as to what transpired on 31
July 2018, is that on that day the accused had conspired
amongst
themselves and other persons to kill a rhino to steal its horn.
[103]
In my view, if regard is had to the
totality of the evidence, the similar fact evidence is relevant to
the allegation that prior
to their arrest on 31 July 2018, the
accused had conspired to kill a rhino with the intention of stealing
its horn, thereby depriving
the owner thereof of such rhino and
horn.  The admission of such evidence far outweighs the
prejudicial effect on the accused.
An analysis of all the
evidence justifies the admission of the similar fact evidence.
[104]
As pointed out earlier, the evidence
relevant to the cellphone records of the accused was largely
undisputed.  Accused 1 was
unable to explain why his cellphone
triggered towers near Queenstown on 24 and 25 December 2017,
Kleindoringberg between 24 and
25 February 2018, Thorndale
between 6 and 10 June 2018, Kragga Kamma between 28 and 29 June 2018
and Shamwari between 1 and 3 July
2018 at a time when rhinos were
killed at those places.  His evidence that his cellphone was
possibly with Mr Khumbane
did not assist him because it was
pointed out that his cellphone and the one allegedly used by
Mr Khumbane were not together,
but the users thereof used those
cellphones to communicate with each other.
[105]
He testified that when accused 5 called him
before their arrest on 31 July 2018, it was for the first time that
accused 5 used Mr
Khumbane’s cellphone to call him.  His
evidence was that he had not received a call from that cellphone
since 7 July
2018 when he was on his way to Zimbabwe until the day of
their arrest, although it was pointed out to him that the records
show
that he received calls from that cellphone on 29 and 30 July
2018.
[106]
Accused 1 was unable to dispute that,
according to his cellphone records, he was in Gauteng on 4 and 5 July
2018 and back in East
London on 5 July 2018.  He testified that
before he left for Zimbabwe on 7 July 2018, he handed his cellphone
to Mr Khumbane,
who returned it to him on 15 July 2018 in
Zimbabwe.  He did not travel with Mr Khumbane to Zimbabwe.
He has never travelled
with accused 5 to Zimbabwe.  He was also
unable to dispute that the records of his cellphone as well as the
one that he claimed
belonged to Mr Khumbane (which was in the
possession of accused 5 on the day of their arrest), showed that
accused 5 was near
Peddie at 12h53 while he was on the N6 between
East London and Queenstown.  He insisted that he received the
first call from
accused 5 at approximately 08h00 to assist with the
Isuzu.  He testified that he was in East London at the time.
He
contacted accused 2 and requested him to return the Ford.
However, he was unable to dispute that the cellphone records
showed
that the first call between them on that day was one that was made by
accused 2 who contacted him from a cellphone
number ending 7909
at approximately 10h18 and that the first time that he called accused
2 was at approximately 12h38 when he (accused
1) was on the N6
between East London and Queenstown.
[107]
He testified that he purchased only one axe
at China Town in East London that morning.  His cellphone
records show that he
was at China Town at 09h37 on that day.  He
was unable to explain why the records of the cellphone that was
linked to accused
5 showed that accused 5 was also at China Town at
09h23 on that same day, while his evidence was that accused 5 had
earlier called
to report that the Isuzu had a breakdown.  He
denied that he and accused 5 were at China Town at the same time
that morning.
[108]
He testified that Mr Khumbane had his own
cellphone with the number ending 8365.  Mr Khumbane
informed him, when both
of them were in Zimbabwe on 15 June 2018,
that he had left his cellphone with accused 2.  According to
him, when Mr Khumbane
was in Zimbabwe, he used another cellphone
which he saved on his cellphone, with the number ending 1227, under
the name Patrick.
He was unable to dispute that his cellphone
did not show a number that was saved under the name of Patrick.
It was pointed
out to him that there were two names saved on his
cellphone under the initial P, one as Pedrito and the other as
Patra.  He
denied that any one of those was Mr Khumbane’s
number.  He confirmed having saved the cellphone numbers of his
co-accused as contacts on his cellphone.  He explained that,
because he is not a learned person, he wrote the names of his

contacts on his cellphone in a way that only he would be able to
understand. When it was put to him that the cellphone number ending

8365 was saved on his cellphone under the name of Niamo, he was
adamant that he did not misspell the name of either Mr Khumbane
or
accused 5.  His evidence (whether he accepted or denied that the
cellphone that he said belonged to Mr Khumbane was
found in the
pocket of accused 5 when he was arrested on 31 July 2018), was
unclear.  At one stage he accepted that it was
found in accused
5’s pocket, but he later denied that the cellphone was found in
accused 5’s pocket.  In this
regard it is pointed out that
it was put to captain Viljoen, on behalf of accused 2, that the
cellphone belonged to accused 2 but
that accused 2 handed the
cellphone to accused 5 when they were in the vehicle on their way to
Gqeberha shortly before they were
arrested.
[109]
Regarding his arrest in Tarkastad in 2017,
accused 1 initially testified that he had borrowed accused 5’s
vehicle from him
to go to Pretoria because Mr Khumbane was using the
vehicle, a yellow Nissan, belonging to their business.  He later
testified
that accused 5 informed him on the previous day that he was
going to Gauteng on the following day.  He then decided to join

accused 5.  He travelled with accused 2, 5 and 6 from East
London.  He had no idea what they were going to do in Gauteng.

Accused 5, who was the driver, told him that they had to go via
Cradock where he had to collect money for petrol.  As I
understood
his evidence, they did not travel through the town of
Cradock before they travelled in the direction of Tarkastad.
[110]
He confirmed that each one of them was in
possession of a cellphone that was confiscated by the police when
they were arrested near
Tarkastad.  He was unable to give an
explanation why the cellphones which were confiscated from them on
that day triggered
the tower at Kleindoringberg shortly before their
arrest on that day.
[111]
He was initially unable to dispute that his
cellphone number at the time ended with 3258 and that the police
recorded that number
under his personal particulars when he was
arrested near Tarkastad.  When he realised that that cellphone
was one of the cellphones
that triggered the tower at
Kleindoringberg, he sought to distance himself from that cellphone
and testified that the cellphone
in his possession ended with the
number 79.  He could not remember the full number.  That
cellphone was not returned
to him nor did he use that cellphone
number after his release.  He used only the cellphone number
ending with 1227 after his
release up to his arrest on 31 July 2018.
He did not have a backup cellphone.  When he lent his cellphone
to Mr Khumbane,
he used his wife’s cellphone.  He
testified that he
did not save Mr
Khumbane’s cellphone number on his cellphone under his name
because he did not know how to spell it.
[112]
The arrangement that he had with Mr
Khumbane regarding the use of his cellphone is so improbable that his
evidence in that regard
must be rejected as false.  He was
unable to explain why Mr Khumbane had to have his cellphone number
ending 1227 and his
(Mr Khumbane’s) own cellphone ending with
number 8365, in his possession when either one of them went away.
It is difficult
to understand why, when he was away on business, his
customers could not call him on his cellphone number ending 1227
whereafter
he could contact Mr Khumbane to assist those customers.
It is furthermore difficult to understand why he could not simply

give Mr Khumbane’s cellphone number ending 8365 to his
customers while he was away and Mr Khumbane at the business.

Similarly, it is difficult to understand why Mr Khumbane could not
simply give accused 1’s cellphone number to his (Mr

Khumbane’s) customers while he was away and accused 1 at
the business.
[113]
The undisputed evidence is that the four of
them were arrested near Tarkastad because the police found an
unlicenced firearm in
the vehicle.  His evidence was that after
he had picked up the bag containing the rifle, he decided to hand it
to the police
in Pretoria.  It was only three months after their
arrest that he decided to plead guilty to the unlawful possession of
that
firearm and ammunition.
[114]
Accused 2 denied that he was at any of the
scenes when rhinos were killed.  Despite the fact that, at the
commencement of the
proceedings, he admitted in terms of section 220
of the Criminal Procedure Act that he used cellphones which ended
with the
numbers 3282 and 7909, during his evidence he testified that
he knew only of a cellphone number ending with 81.  He testified

that that was the cellphone which was found on him upon his arrest on
31 July 2018.
[115]
He testified that he misplaced the
cellphone that Mr Khumbane made available to him, only for that
cellphone to resurface in accused
5’s possession on the day of
their arrest.  Despite accused 2 seeing that cellphone in
accused 5’s possession
after some time, he did not approach
accused 5 to enquire how the cellphone landed up with him or reclaim
it.  In my view,
the versions of accused 1 and 2 regarding the
alleged existence of Mr Khumbane is so improbable that it cannot
be reasonably
possibly true.  It is no coincidence that the
number ending 8365 was saved on accused 1’s cellphone under the
name of
Njamo, close to accused 5’s first name of Nhamo, and
not under the name of Patrick or Khumbane.  Accused 2’s
version
of how Mr Khumbane made that cellphone available to him, how
he misplaced it and how it resurfaced in the possession of accused 5

on the day of their arrest, only had to be heard to be rejected as
false.  The probabilities are that Mr Khumbane’s
existence
was a fabrication, the aim being to protect accused 5 and the use by
him of that cellphone.  A reading of the evidence
of accused 1
and 2 demonstrates beyond doubt the attempt by them to protect
accused 5.  Accused 2 testified that when he was
arrested at
Cradock, the police found in his possession a cellphone ending with
number 6681.  That is despite the fact that
his warning
statement showed that he gave the number ending 8415 as his cellphone
number and despite the fact that accused 5 gave
a cellphone ending
with number 6681 to the police a few minutes before accused 2 gave
the number ending 8415 as his.  The
probabilities indicate that
the Mr Khumbane that they referred to was in fact accused 5.
[116]
The version of accused 3 and 4 that they
were on their way to Valencia for employment purposes is improbable.
Accused 3 testified
that he did not know where Gqeberha and Valencia
were and accused 4 testified that he did not know where Gqeberha
was.  Yet,
when accused 5 said that he was going to Gqeberha,
they decided to take a lift with him.  Accused 4 was so hooked
on the Valencia
story that he testified that, after the Isuzu had
broken down, accused 5 told him that they were going to be dropped
off in Makhanda
so that they could hike to Valencia while the Isuzu
was being repaired.
[117]
Accused 3 testified that he took tools with
him that he was going to use in Valencia.  He was also going to
look for corrugated
iron sheets to build a shack in which they would
be accommodated.  The police did not testify that they found a
trowel, a
pickaxe and a shovel in the Isuzu or Ford, neither was it
put to them that that was going to be accused 3’s evidence.
Accused
4 testified that he also did not see those tools and that he
told accused 3 that the person who provided the job would arrange for

accommodation and the tools to do the job.
[118]
Accused 5 testified that he told the
occupants of the vehicle that he would first go to Cradock to drop
off some tools before heading
to North West.  That was the only
reason that he went via Cradock.  He later altered his evidence
to include the collection
of petrol money as a reason for going via
Cradock, after that version was put to him.  He testified that
he did not tell the
others in the vehicle about the petrol money.
He was unable to explain why accused 1 knew about the petrol money if
he did
not tell him about it.
[119]
Accused 5 testified that after the
Tarkastad arrest, he did not have a cellphone until they were
arrested on 31 July 2018.
Yet, on the morning after his return
from Zimbabwe on 29 July 2018, accused 3 borrowed his cellphone and
he obliged.  He was
unable to explain how accused 3 knew that he
had a cellphone.
[120]
There is a striking similarity between the
evidence of accused 1 relating to the alleged discovery of the rifle
in the park outside
Cradock and the evidence of accused 2 relating to
the discovery of the rifle in the bush near his home.  Once
again, on his
version, he was the only one who knew about the rifle
before it was discovered by the police in the tailgate of the Ford.

If one must accept the evidence of accused 1 and 2 relevant to the
rifles for which they accepted liability, one must also accept
that
they caused those who were arrested with them to be incarcerated for
a long time knowing that they were innocent in so far
as the
possession of those rifles was concerned, yet, it was only in court
that they accepted liability.  That is so improbable
that it
must be rejected as false.
[121]
When the rifle was found, it was wrapped in
plastic with cellotape around it.  The same plastic and
cellotape were found at
accused 1’s home.  It will be
remembered that accused 2 claimed that he found the rifle in a nearby
bush, concealed
it in that same bush and then in the Ford the night
before their arrest.  It is highly improbable that the rifle was
allegedly
found in similar circumstances as the rifle which accused 1
found in a park outside Cradock and that, if it was discovered as
accused
2 testified, yet its innocent discovery was not reported to
the police.  Accused 2’s explanation for having concealed

the rifle in the Ford the night before their arrest was that he did
not have an opportunity to ask accused 1 to accompany him to
a police
station, because he was in the country illegally.  That
explanation is so improbable that it cannot be reasonably
possibly
true.  He could not explain how the presence of accused 1 was
going to assist him to explain his illegal stay in
the country to the
police.  Furthermore, that the same plastic and cellotape in
which the rifle was wrapped were found at
accused 1’s home,
demonstrates the complicity of at least accused 1 and 2 in that
regard.
[122]
It was put to captain Viljoen that accused
3 to 6 would testify that they told him that they were on their way
to work in Valencia.
However, they testified that they did not
speak to captain Viljoen because they did not understand what he said
to them because
he used Afrikaans when he addressed them.
[123]
None of the accused impressed as
witnesses.  They were warned on more one occasion not to give
long and irrelevant answers
to fairly straightforward questions.
They were argumentative and had no hesitation to
change their evidence as and when they pleased.  The record
speaks for itself
in that regard.  I have dealt with evidence of
all the accused in detail to demonstrate that their respective
versions were
so improbable that they must be rejected as false.
Their evidence was adduced with the sole purpose of creating the
impression
that accused 3, 4 and 6 were on their way to work at
Valencia, having been given a lift by accused 5 who was on his way to
Gqeberha
and that accused 1 and 2 went to assist them after the Isuzu
had broken down.  The cellphone records linked to the cellphones

found in the possession of the accused did not support their
versions.  In addition, there was a deliberate attempt by the

other accused to distance themselves from the cellphone which was
linked to accused 5, who seemed to have been one of the ringleaders

of their mission.  The cellphone records of the accused on that
day, as well as the cellphone records of accused 1, 2, 5 and
6 in
respect of the days when rhinos had previously been killed,
demonstrate that, had it not been for the intervention of the
police
on 31 July 2018, the accused, after having unlawfully conspired to do
so, were on their way to kill a rhino with the intention
of stealing
its horn.  In the circumstances, I am satisfied that the state
proved its case against the accused on count 2
beyond reasonable
doubt.  They should accordingly be convicted on count 2.
[124]
Can
it be said that the state proved that, in addition to accused 2, the
other accused also unlawfully possessed the rifle and ammunition

referred to in counts 3 and 4?  The evidence in that regard is
that the very same rifle had fired bullets recovered from the
rhino
carcasses at Kragga Kamma and Shamwari, it was discovered in the
tailgate of the Ford together with other tools of the rhino
poaching
trade, as alluded to earlier.  Accused 2’s version of
having picked up the rifle in a bush and his explanation
for being in
possession thereof until they were arrested, is rejected as false.
The accused could not have gone to kill a
rhino without a large game
hunting rifle.  All the accused must have known that, without
such a rifle, their plan to kill
a rhino would not be executed.
It is found that they were all aware of the existence of the rifle.
A successful kill
required not only such a rifle; but also ammunition
which could be fired from it.  That was the situation in this
case.
In my view, and on the acceptance of all the evidence
which has not been rejected, the only inference to be drawn from
those facts
is that each of the accused had the requisite
mens
rea
concerning the unlawful outcome of their mission at the time the
offence was committed.  In other words, they intended the

unlawful killing of a rhino and with the intention of stealing its
horn or they foresaw the possibility of the criminal conduct
ensuing
and each one nonetheless actively associated himself reckless as to
whether the result was to ensue.
[8]
In other words, one accused is by association held liable for the
criminal conduct of another.  Such liability arises
by operation
of law.  I am satisfied that the state established beyond
reasonable doubt that the accused had the intention
to exercise
possession of the rifle and ammunition through the actual holder
thereof, namely accused 2, on his own admission, and
that he had the
intention to hold the rifle and ammunition on behalf of the other
accused.  It means that each of the other
accused is held to
have intended to exercise possession of the rifle and ammunition
through accused 2 and that he intended to hold
the rifle and
ammunition on behalf of the others.
[9]
Since the state proved beyond reasonable doubt that all the
accused were in unlawful possession of the rifle and ammunition,
each
of them must be convicted on counts 3 and 4.
[125]
In the result, it is ordered:
125.1.
that each accused is found not guilty on
count 1 and discharged;
125.2.
each of the accused is found guilty on:
125.2.1.
count 2, in that he conspired to commit
theft of a rhinoceros horn.
125.2.2.
count 3, in that he unlawfully possessed a
.375 calibre hunting rifle, in contravention of
section 3
of the
Firearms Control Act, 60 of 2000
.
125.2.3.
count 4, in that he unlawfully possessed 9
rounds of .375 calibre ammunition, in contravention of
section 90
of
the
Firearms Control Act, 60 of 2000
.
G
H BLOEM
Judge
of the High Court
For the state:

Mr J C Coetzee of the office of the Director of Public Prosecutions,
Makhanda.
For
accused 1 and 2:
Mr V Mqeke, instructed
by Legal Aid South Africa.
For
accused 3, 4, 5 and 6:      Mr C Stamper,
instructed by Legal Aid South Africa.
Date
heard:

3, 4, 5, 6, 9, 10 and 11 March 2020, 20 and 21 May 2021 and 3, 4, 5
and 6 May 2022 and 14 July 2022.
Date
of judgment:

30 September 2022.
[1]
Riotous
Assemblies Act, 1956 (Act 17 of 1956).
[2]
National
Environmental Management: Biodiversity Act, 2004 (Act 10 of 2004).
[3]
Firearms
Control Act, 2000 (Act 60 of 2000).
[4]
Criminal
Procedure Act, 1977 (Act 51 of 1977).
[5]
Electronic
Communications and Transactions Act, 2002 (Act 25 of 2002).
[6]
Savoi
and others v National Director of Public Prosecutions and another
2014
(1) SACR 545
(CC) at par 55 and
S
v Ndlovu and others
[2019] 2 All SA 773
(ECG) at paras 132 to 138.
[7]
Rex
v Blom
1939
188 AD at 202-203.
[8]
S
v Thebus and another
[2003] ZACC 12
;
2003
(2) SACR 319
(CC) at par 49.
[9]
S
v Makhubela and another
2017
(2) SACR 665
(CC) at paras 46 and 47